The Labor and Employment Law Blog : Labor & Employment Lawyer & Attorney : Weintraub Genshlea Chediak Tobin & Tobin Law Firm : Sacramento California : Labor & Employment Law Blog

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Wednesday, September 14, 2011

12:00 PM - 12:30 PM FREE Lunchtime Teleconference

Location: Teleconference -

Dial 1-610-214-0100
Access Code: 341076#

Payment Details:
• Members: $0.00 in advance (By Sep 13) / $0.00 at the door

• Non-Members: $0.00 in advance (By Sep 13) / $0.00 at the door

The Topic:
Mutual Wage Agreements. Can You Contract Around Overtime Obligations?

Examining the new Arechiga v. Dolores Press, Inc. case – can California employers enter into mutual wage agreements with non-exempt employees that factor in overtime pay to their set compensation? Come hear Lizbeth (“Beth”) West, employment attorney and SEAC Board Chair, discuss this newest case and strategies (and potential pitfalls) of entering into agreements with non-exempt employees to avoid statutory overtime obligations. Get the lowdown on how to construct a “mutual wage agreement” before you tread on thin ice….

The Speaker(s):

Lizbeth 'Beth' West, Esq.

Speaker Background:
Lizbeth V. West, Esq. is a partner with Weintraub Genshlea Chediak Tobin & Tobin. Her practice focuses on counseling and training employers and management staff on employment issues such as hiring, disciplinary actions, privacy, terminations, lay-offs, employment policies and contracts, protection of trade secrets, wage and hour laws, leave laws, prevention of discrimination, harassment and retaliation, and compliance with other state and federal employment laws. She also has extensive experience defending employers in various forms of employment-related litigation in state and federal court, and in administrative actions before a number of state and federal agencies.

Note: The speaker's presentation is for informational purposes. Attendees should always consult with their legal counsel to determine how the information discussed during the meeting affects their particular circumstances.

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By: Chelcey E. Lieber

On August 25, 2011, the National Labor Relations Board (the “NLRB”) issued a new rule which requires all private-sector employers (including labor unions) subject to the National Labor Relations Act (the “Act”) to post a notice informing employees of their rights under the Act. The required notice will include information about employees’ rights to act together to improve wages and working conditions, to form, join, and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. The final rule takes effect on November 14, 2011.

The notice must be at least 11 inches by 17 inches in size and posted in a conspicuous place where it can be readily seen by employees. In addition to the physical posting, the notice must be posted to any intranet or internet site maintained by the employer which contains other personnel rules and policies.

The NLRB will make an acceptable notice available starting on November 1, 2011. Employers can either download a free copy of the notice from the NLRB’s website or request a free copy by contacting the NLRB at its headquarters or its regional, sub-regional, or resident offices. Alternatively, employers can satisfy the rule by purchasing a set of workplace posters from a commercial supplier. 

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By: Lizbeth V. West, Esq.

Last September, California’s previous governor (the “Governator;” oops I mean Governor Schwarzenegger) signed into law a new statutory leave entitlement for certain employees who are going to donate their bone marrow or an organ to another.

The law was codified in Labor Code section 1510 and provided that an employer must grant a paid leave of absence to an employee who is an organ donor or a bone marrow donor. The leave of absence to an organ donor is up to 30 days in a one-year period. The leave of absence for a bone marrow donor is up to 5 days in a one-year period. The leave of absence for either donor is not a break in his or her continuous service for the purpose of his or her right to salary adjustments, sick leave, vacation, annual leave, or seniority. As a condition of an employee's initial receipt of the leave of absence, an employer may require the employee to take a specified number of days of earned but unused sick or vacation leave, unless that would violate provisions of an applicable collective bargaining agreement.

California’s current Governor Brown signed Senate Bill 272 on August 1, 2011 in order to clarify certain provisions in Labor Code section 1510.
 

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By: Meagan D. Christiansen

The Third Appellate District for the California Court of Appeals recently issued a decision that provides hope for those employers who unknowingly hire undocumented workers throughout California. In Salas v. Sierra Chemical Co., the court used the after-acquired evidence and unclean hands doctrines to bar Salas’ Complaint, ruling that undocumented workers are not entitled to recourse on a wrongful failure to hire claim, where they misrepresent their lawful ability to work in the first place.

Relevant Facts:

Vicente Salas was a seasonal worker at Sierra Chemical, a swimming pool chemical business. In 2006, he injured his back while working. After returning to work for a short time on modified duty, he reinjured his back when he was re-assigned to his regular duties. Following this injury, he brought a workers’ compensation claim against the company. In December 2006, Salas was laid off as part of Sierra Chemical’s annual reduction. In 2007 Sierra Chemical contacted Salas, informing him that he could return to work, provided he could establish he had received a medical release. Salas could not produce such a release and was precluded from returning pursuant to Sierra Chemical’s policies.
 

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The California Supreme Court Confirms that Companies May Delegate Some Workplace Safety Obligations to Independent Contractors

By: Lizbeth V. West, Esq.

On August 22, 2011, the California Supreme Court issued its decision in Seabright Insurance Company v. US Airways, Inc. The issue before the Court was whether the Privette rule applies when the party that hired an independent contractor (the “Hirer” or “Principal”) failed to comply with workplace safety requirements concerning the precise subject matter of the contract, and the injury is alleged to have occurred as a consequence of that failure. The Privette rule essentially provides that when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work. (Privette v. Superior Court (1993) 5 Cal.4th 689.)

Relevant Facts from the Seabright Case.

US Airways uses a conveyor to move luggage at San Francisco International Airport. The airport is the actual owner of the conveyor, but US Airways uses it under a permit and has responsibility for its maintenance. US Airways hired an independent contractor, Lloyd W. Aubry Co. (“Aubry”), to maintain and repair the conveyor. US Airways neither directed nor had its employees participate in Aubry‘s work.
 

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By: Brendan J. Begley

As the California Legislature reconvenes this week from its summer recess, it will be poised to advance bills that could, if enacted, impact the workplace.  Among them is AB 22, which would prohibit employers, except certain financial institutions, from obtaining a consumer credit report for employment purposes.  If AB 22 becomes law, employers would be able to obtain such reports only if the information sought is substantially job-related and pertains to a managerial or other sensitive position.

Under AB 22, information would be substantially job-related if the person for whom the report is sought would have access to the employer’s confidential information, money, or assets.  Likewise, the position would be a sensitive one if the information contained in the report is required by law to be disclosed or to be obtained by the employer. 

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By: James Kachmar

Almost every employer offers some form of vacation leave to its employees. Some employers, following the lead of academia, also offer long-term employees sabbatical leaves so that they can “recharge their batteries” and hopefully return to work more productive and creative.

Employers must ensure that they have proper policies in place in characterizing sabbatical leave to avoid it from being considered as vacation leave. The difference is important: Vacation leave that has been earned but not used must be paid out at the time the employee’s employment ends; whereas, sabbatical leave does not.

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By: James Kachmar

Labor Code section 2810 was enacted by the California Legislature in 2004. The primary provision of section 2810 prohibits a party such as an employer from contracting for certain types of services, including construction services if that party knows or should know the contract “does not include funds sufficient to allow the contractor to comply with all applicable local, state and federal laws or regulations governing the labor or services to be provided.” It also provides a private cause of action in favor of employees “aggrieved” by any violations. 

Section 2810 was enacted to address “wide spread subminimum wages and working conditions” that existed primarily in construction, janitorial, security and garment industries at the time. In Castillo v. Toll Bros., Inc. (decided July 28, 2011), a California appellate court addressed the provisions of section 2810 for apparently the first time. Toll Bros. was the general contractor on several construction projects and was later sued by employees of subcontractors alleging violations of wage and hour laws, including section 2810. The employees argued that Toll Bros., in bidding the projects, did not include sufficient funds to the subcontractors that resulted in the claimed wage and hour violations.

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By: Alden J. Parker

With the TV networks cancelling daytime Soap Operas left and right, it seems up to the NLRB to provide us with our daily dose of drama. As has been previously reported here and in countless other articles, the National Labor Relations Board (“NLRB”) has been closely scrutinizing employers’ decisions to terminate employees for posts on Facebook. Until very recently, that scrutiny has universally led to unfair labor practice complaints having been filed against the employers, claiming the terminations were a violation of Section 7 of the National Labor Relations Act (“NLRA”). Those cases have unceremoniously ended in settlement, without employers being able to obtain much guidance for the limits of future actions or gauge the cost and dangers associated with acting in response to employees’ Facebook rants. Employers were left to wonder whether all Facebook postings by employees would be considered protected activity by the NLRB.

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By: Lizbeth V. West, Esq.

Can an employee take FMLA leave for substance abuse?

The FMLA regulations clearly state that:

“FMLA leave may only be taken for treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. On the other hand, absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave.”

(19 C.F.R. § 825.119(a) (emphasis added).)

So, according to the regulations, an employee is not qualified for FMLA leave if he/she is absent because of current substance abuse right? Not so fast.

In Picarazzi v. John Crane, Inc. (“J. Crane”), the employee, Picarazzi, had a history of alcohol abuse and started to have attendance problems in March 2008. In late March or early April, 2008, the employee informed J. Crane of his alcoholism and his need to get some help. He filled out leave of absence paperwork and went into rehab on April 2, 2008. He turned in a FMLA medical certification from his doctor that said he would be in rehab for approximately 30 days and the anticipated discharge date was May 2, 2008. The HR coordinator for the J. Crane approved the FMLA leave and provided the employee with an FMLA designation form stating that his “12 weeks of job protection expires on June 23, 2008.” The Company also asked that the employee check in every 30 days. 

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